Opinion; Subjects: EGYPT, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.25-08056 (E) 230625 240625
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its 102nd session, 1–10 April 2025
Opinion No. 29/2025 concerning Ibrahim Amer Shehata Fattouh
(Egypt)
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights. In its resolution 1997/50, the Commission extended and
clarified the mandate of the Working Group. Pursuant to General Assembly resolution 60/251
and Human Rights Council decision 1/102, the Council assumed the mandate of the
Commission. The Council most recently extended the mandate of the Working Group for a
three-year period in its resolution 51/8.
2.
In accordance with its methods of work, 1 on 29 April 2024 the Working Group
transmitted to the Government of Egypt a communication concerning Ibrahim Amer Shehata
Fattouh. The Government submitted a late response on 31 July 2024. The State is a party to
the International Covenant on Civil and Political Rights.
3.
The Working Group regards deprivation of liberty as arbitrary in the following cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or her
sentence or despite an amnesty law applicable to him or her) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States Parties are concerned, by articles 12, 18, 19, 21, 22, 25,
26 and 27 of the Covenant (category II);
(c)
When the total or partial non-observance of the international norms relating to
the right to a fair trial, established in the Universal Declaration of Human Rights and in the
relevant international instruments accepted by the States concerned, is of such gravity as to
give the deprivation of liberty an arbitrary character (category III);
(d)
When asylum-seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or remedy
(category IV);
(e)
When the deprivation of liberty constitutes a violation of international law on
the grounds of discrimination based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation, disability
or any other status, that aims towards or can result in ignoring the equality of human beings
(category V).
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2025/29
General Assembly
Distr.: General
24 June 2025
Original: English
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1.
Submissions
(a)
Communication from the source
4.
Ibrahim Amer Shehata Fattouh is an Egyptian citizen born on 18 September 1995.
His usual place of residence is Shubra el-Kheima. At the time of his arrest, he was a student
at the Faculty of Arts at Ain Shams University.
(i)
Context
5.
The source submits that “case recycling”, a legal practice that emerged in 2014 in
Egypt, has become commonplace in the country’s criminal justice system. It involves the
prosecution bringing a new case, often using the same accusations, against detainees who
have just completed or are still in the process of serving their sentence for another case. It is
argued that that practice has created a pathway for circumventing the two-year legal limit of
pretrial detention as prescribed by article 143 of the Criminal Procedure Code by activating
new charges against those accused, in contravention of the principle of legality.
6.
Reportedly, since the amendments to the counter-terrorism law of 2015, which have
broadened the definitions of “terrorist entity” and “terrorist act”, the direct consequence has
been the multiplication of arbitrary detentions and enforced disappearances and the
crackdown against the fundamental freedoms of ordinary citizens.
7.
According to the source, the case of Mr. Fattouh is an example of the practice of legal
recycling used to instil fear and discourage the emergence of voices critical of the
Government. The charges brought against Mr. Fattouh do not have an empirical or evidential
basis and are similar to those used against other detainees in an endeavour to exercise force
and societal control by the authorities.
(ii)
Arrest and detention
8.
The source submits that, on 21 July 2015, Mr. Fattouh was arrested by national
security officers at a metro station in Cairo. Reportedly, the officers did not show Mr. Fattouh
an arrest warrant and did not provide him with the reasons for his arrest.
9.
The source reports that Mr. Fattouh was subjected to enforced disappearance from the
day of his arrest until 18 April 2016 when he appeared before the East Cairo Military District
Court. According to the source, it was later revealed that Mr. Fattouh was at the headquarters
of the National Security Agency in Cairo. The source also notes that Mr. Fattouh’s enforced
disappearance was not acknowledged by the authorities as it was written in his case file that
he had been arrested on 18 April 2016, the day that he appeared before the East Cairo Military
District Court.
10.
According to the source, during his enforced disappearance, Mr. Fattouh was
subjected to torture, including physical beatings, the application of electric shocks, denial of
access to the bathroom and suspension in painful positions. The source submits that the
purpose of his torture was to get him to admit to the criminal charges filed against him,
namely, spying on the movements of a police car headed to Bahtim Post Office. It is argued
that, due to the severity of his torture, Mr. Fattouh confessed to all the charges brought against
him. The source notes that his confession was recorded on video by agents of the National
Security Agency to be used as criminal evidence against him in court.
11.
The source adds that, during Mr. Fattouh’s enforced disappearance, his family
submitted complaints to the Attorney General and the Minister of the Interior enquiring about
his whereabouts. Reportedly, the authorities opened an investigation into Shubra el-Kheima
police station and compiled a report on the incident. However, no further action was taken
by the authorities.
12.
The source states that, on the date of his reappearance, 18 April 2016, Mr. Fattouh
appeared before the East Cairo Military District Court in relation to case No. 247 on charges
of joining a terrorist group and spying on the movements of a police car headed to Bahtim
Post Office.
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13.
It is submitted that, despite informing the judge that his confessions had been obtained
under torture and having physical traces of torture, namely, black spots all over his body from
the electric shocks and severe functional impairment of his limbs due to nerve damage, his
claims were largely ignored and the prosecution refused to open an investigation into the
allegations of torture.
14.
Reportedly, on 23 August 2021, after nearly six years of pretrial detention,
Mr. Fattouh was sentenced to seven years’ imprisonment in Tora Istiqbal Prison.
15.
According to the source, on 18 April 2023, following the completion of his sentence,
Mr. Fattouh was transferred to Shubra el-Kheima Police Department to complete the
procedure for his release However, instead of being released, Mr. Fattouh was reportedly
transferred to Qalyoub Police Department, where he found himself charged in relation to a
new case, No. 2209, for allegedly joining a terrorist group.
16.
The source reports that Mr. Fattouh was later acquitted in case No. 2209. However,
the source notes that Mr. Fattouh was charged in relation to another case, No. 2003, based on
the same charges as case No. 2209, for which bail was set at 5,000 Egyptian pounds. The bail
was paid by his family. However, Mr. Fattouh was not released. Instead, he was reportedly
sent to Abu Zaabal Prison. After a month, on 1 February 2024, Mr. Fattouh was transferred
from Abu Zaabal Prison to the 10th of Ramadan Prison, where he is currently being held, in
relation to case No. 1973 (2023), on charges of joining a terrorist group.
17.
The source submits that Mr. Fattouh’s family was first able to visit him on 20 April
2016. Family visits take place once a month and last for 30 minutes. The last reported family
visit took place on 12 February 2024.
18.
The source reports that Mr. Fattouh has been subjected to medical negligence that may
amount to torture and ill-treatment. Following his enforced disappearance, Mr. Fattouh
developed back problems and limb impairments due to the torture that he suffered as a result
of the electric shocks that he received. During his detention in Abu Zaabal Prison, detainees
reportedly had access to treatment through the prison hospital. However, during his
confinement at Tora Istiqbal Prison (23 October 2021–18 March 2023), the situation
deteriorated. According to the source, despite suffering from reflux and having difficulties
eating, Mr. Fattouh had to wait two years to undergo an endoscopy examination. Moreover,
while held at Tora Istiqbal Prison and Minya Prison, Mr. Fattouh reportedly asked on multiple
occasions for an X-ray of his back, but his requests were denied.
19.
The source submits that Mr. Fattouh is currently being held in pretrial detention in
relation to case No. 1973 (2023) at the 10th of Ramadan Prison.
(iii)
Legal analysis
20.
The source submits that the arrest and detention of Mr. Fattouh is arbitrary under
categories I and III of the Working Group.
a.
Category I
21.
The source submits that the arrest and subsequent detention of Mr. Fattouh are
arbitrary as no legal basis can be invoked to justify his deprivation of liberty.
22.
The source contends that the agents of the National Security Agency who arrested
Mr. Fattouh failed to provide an arrest or search warrant, or any legal documentation to
justify it. As such, the failure of the authorities to inform Mr. Fattouh of the legal charges
against him constitutes a violation of articles 9 (2) and 14 (3) (a) of the Covenant,
principles 10 and 13 of the Body of Principles for the Protection of All Persons under Any
Form of Detention or Imprisonment and article 54 of the Constitution of Egypt.
23.
The source recalls that arbitrary arrest is also prohibited under article 9 of the
Universal Declaration of Human Rights and article 6 of the African Charter on Human and
Peoples’ Rights, both of which safeguard the right to liberty and security of person. It is
further recalled that, in its general comment No. 35 (2014), the Human Rights Committee
reaffirmed that any person should be informed, at the time of arrest, of the reasons for the
arrest and that that requirement applied broadly to the reasons for any deprivation of liberty.
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Lastly, article 14 (3) of the Arab Charter on Human Rights also emphasizes that anyone
subject to arrest should be informed of the reasons behind their arrest and the charges under
which it occurs.
24.
The source recalls that principle 10 of the Body of Principles for the Protection of All
Persons under Any Form of Detention or Imprisonment clearly states that those arrested
should be informed at the time of their arrest of the reasons for the arrest and should be
promptly informed of any charges against them.
b.
Category III
25.
According to the source, Mr. Fattouh was subjected to enforced disappearance from
21 July 2015 to 18 April 2016. It is argued that Mr. Fattouh was thus placed outside the
protection of the law, exacerbating his exposure to abuse. The source reports that enforced
disappearances have become a systematic and routine practice in the national legal system.
26.
The source recalls that the right of persons not to undergo enforced disappearance is
considered one of the fundamental customary non-derogable rights, even in a state of
emergency. It is also recalled that the International Convention for the Protection of All
Persons from Enforced Disappearance states that persons deprived of liberty should be held
solely in an officially recognized place of detention. States are obligated to ensure that no
one is held secretly in detention; they should provide the detainee’s family and lawyer with
accurate information on the detention.
27.
Moreover, the source asserts that enforced disappearances also violate article 36 of
the Criminal Procedure Code, which states that a judicial officer should immediately hear the
statements of the arrested suspect who, if he fails to establish his innocence, should be
brought before the office of the competent public prosecutor within 24 hours. The office of
the public prosecutor should question him within 24 hours, after which it should order either
his remand in custody or his release. Moreover, the source recalls that, under article 54 of the
Constitution, all persons whose freedom is restricted should be immediately notified of the
reasons therefor; informed in writing of their rights; immediately enabled to contact their
relatives and lawyer; and brought before the investigating authority within 24 hours of their
freedom being restricted.
28.
The source recalls that principle 15 of the Body of Principles for the Protection of All
Persons under Any Form of Detention or Imprisonment provides that communication of
detained or imprisoned persons with the outside world and, in particular, their family or
counsel should not be denied for more than a matter of days. The source notes that the
effectiveness of a legal counsel is fundamentally related to the principle of equality of arms,
as enshrined in article 11 of the Universal Declaration of Human Rights, which draws on the
right of detainees to be given the time and facilities necessary to prepare and present their
defence with the assistance of counsel.
29.
According to the source, Mr. Fattouh no longer has access to legal counsel.
Reportedly, Mr. Fattouh had a lawyer, appointed by his family at the initial stage of the trial,
who attended the court sessions with him. However, the source notes that Mr. Fattouh’s
lawyer was never able to visit him and communication was only possible during
Mr. Fattouh’s appearances before the prosecution.
30.
The source notes that, as the cases against Mr. Fattouh kept multiplying, he stopped
believing that he could prove his innocence through domestic legal routes and thus stopped
hiring lawyers to defend him.
31.
Moreover, the source submits that, while Mr. Fattouh was forcibly disappeared for
nine months, he was interrogated and forced to confess. As such, the source argues that
Mr. Fattouh was placed outside the protection of the law and his right to legal counsel was
violated.
32.
The source submits that, during Mr. Fattouh’s enforced disappearance, he was
subjected to torture, including physical beatings, the application of electric shocks, denial of
access to the bathroom and suspension in painful positions, in violation of his right to be free
from any act intentionally inflicted on him to cause him severe suffering, whether physical
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or mental. The source asserts that such acts were in violation of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
33.
The source asserts that the right to freedom from torture and other ill-treatment or
punishment is absolute. It applies in all circumstances and may never be restricted, including
during times of war or states of emergency. No exceptional circumstances, including threats
of terrorism or other violent crime, may be invoked to justify torture or other ill-treatment.
Such prohibition applies irrespective of the offence allegedly committed by the accused
person.
34.
The source contends that confessions obtained under physical and psychological
torture were presented as evidence by the prosecution and accepted by the East Cairo Military
District Court, on 18 April 2016, as legal grounds to sentence, despite the fact that
Mr. Fattouh informed the judge that his confession had been obtained under torture. The
source argues that that fact casts doubt upon the independence, impartiality and neutrality of
the Court.
35.
The source recalls that the three principles of independence, impartiality and
neutrality of courts constitute the fundamental pillars for ensuring that trials are fair.
Article 15 of the Convention against Torture states that the inadmissibility of evidence
obtained under torture is comprehensive under the right to a fair trial, with regard to the right
against self-incrimination and to the unreliability of statements obtained through torture.
36.
The source thus concludes that Mr. Fattouh’s right to a fair trial was violated.
37.
The source recalls that every detainee has the right to the highest attainable standard
of physical and mental health. That right extends not only to timely and appropriate
healthcare but also to underlying determinants of health, such as adequate food, water and
sanitation. Moreover, ill prisoners whose health conditions require treatment from specialists
should be transferred to specialized institutions or civil hospitals. The failure to provide
access to adequate healthcare has been held to violate the right to health.
38.
It is further recalled that article 10 (1) of the Covenant states that all persons deprived
of their liberty shall be treated with humanity and with respect for the inherent dignity of the
human person. Moreover, the United Nations Standard Minimum Rules for the Treatment of
Prisoners (the Nelson Mandela Rules) set standards that include principles for providing
healthcare in custody. Rule 24 states that the provision of healthcare for prisoners is a State
responsibility. Prisoners should enjoy the same standards of healthcare that are available in
the community and should have access to necessary healthcare services free of charge and
without discrimination on the grounds of their legal status.
39.
The source contends that Mr. Fattouh’s case is a clear demonstration of deliberate
medical negligence. It is asserted that Mr. Fattouh developed back problems and functional
impairment of his limbs due to the electric shocks that he was subjected to during his enforced
disappearance. However, despite his deteriorating health condition, Mr. Fattouh’s requests
for a medical examination were rejected by the prison authorities. In fact, it is submitted that
Mr. Fattouh had to wait two years to receive an endoscopy examination and, even though he
asked on multiple occasions for an X-ray of his back, his requests were consistently denied.
(b)
Response from the Government
40.
On 29 April 2024, the Working Group transmitted the allegations from the source to
the Government under its regular communications procedure. The Working Group requested
the Government to provide, by 28 June 2024, detailed information about the current situation
of Mr. Fattouh and to clarify the legal provisions justifying his continued detention, as well
as its compatibility with the obligations of Egypt under international human rights law, and
in particular with regard to the treaties ratified by the State. Moreover, the Working Group
called upon the Government to ensure the physical and mental integrity of Mr. Fattouh.
41.
On 27 June 2024, the Government requested an extension of the deadline, which was
granted until 29 July 2024. The Government submitted its reply on 31 July 2024, which was
after the deadline. The Working Group cannot accept that response as if it were provided
within the time limit. In accordance with paragraph 16 of its methods of work, the Working
Group will render its opinion based on all the information that it has obtained.
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2.
Discussion
42.
In the absence of a timely response from the Government, the Working Group has
decided to render the present opinion, in conformity with paragraph 15 of its methods of
work.
43.
In determining whether Mr. Fattouh’s detention is arbitrary, the Working Group has
regard to the principles established in its jurisprudence to deal with evidentiary issues. If the
source has established a prima facie case for breach of international law constituting arbitrary
detention, the burden of proof should be understood to rest upon the Government if it wishes
to refute the allegations. Mere assertions by the Government that lawful procedures have
been followed are not sufficient to rebut the source’s allegations.2
44.
The source argued that Mr. Fattouh’s detention is arbitrary and falls under categories I
and III. The Working Group will examine those in turn.
(a)
Category I
45.
The source submits that, when Mr. Fattouh was arrested on 21 July 2015 by agents of
the National Security Agency, he was not shown an arrest warrant nor provided with the
reasons for his arrest. In its late response, the Government did not respond to the allegation
that the arrest had taken place without a warrant.
46.
Pursuant to article 9 (1) of the Covenant, no one is to be deprived of their liberty
except on such grounds and in accordance with such procedures as are established by law.
Article 9 (2) of the Covenant provides that all persons who are arrested are to be informed,
at the time of arrest, of the reasons for their arrest and are to be promptly informed of any
charges against them. As the Working Group has previously stated, in order for a deprivation
of liberty to have a legal basis, it is not sufficient that there is a law that may authorize the
arrest. The authorities must invoke that legal basis and apply it to the circumstances of the
case. 3 That is typically done through an arrest warrant or arrest order (or equivalent
document).4 The reasons for the arrest must be provided immediately upon arrest and must
include not only the general legal basis of the arrest, but also enough factual information to
indicate the substance of the complaint, such as the wrongful act and the identity of an alleged
victim.5
47.
Absent any information from the Government contesting the source’s allegations in
that regard, the Working Group considers that Mr. Fattouh was not presented with an arrest
warrant or provided with the reasons for his arrest, at the time of arrest, in violation of
article 9 of the Universal Declaration of Human Rights and article 9 (1) and (2) of the
Covenant. In addition, the Government has not rebutted the source’s claim that the terrorist
organization to which he was accused of belonging has to this day not been named, lending
additional weight to the conclusion that Mr. Fattouh was not informed of the reasons for his
arrest, let alone of the charges against him in a prompt manner.
48.
The Working Group observes the source’s allegations that Mr. Fattouh was subjected
to enforced disappearance for nine months, from the day of his arrest, 21 July 2015, until
18 April 2016, when he appeared before the East Cairo Military District Court. His family
submitted complaints to the Attorney General and the Minister of the Interior enquiring about
his whereabouts and, while the authorities opened an investigation and compiled a report on
the incident, no subsequent action by the authorities followed. Moreover, the source argues
that that period was not acknowledged by the authorities, since in his case file it was noted
that Mr. Fattouh had been arrested on 18 April 2016, reflecting the day that he appeared
before the court, rather than his actual date of arrest. In its belated response, the Government
makes no reference to those allegations.
2 A/HRC/19/57, para. 68.
3 Opinions No. 9/2019, para. 29; No. 46/2019, para. 51; and No. 59/2019, para. 46.
4 Opinions No. 88/2017, para. 27; No. 3/2018, para. 43; and No. 30/2018, para. 39. In cases of arrests
made in flagrante delicto, the opportunity to obtain a warrant will typically not be available.
5 Human Rights Committee, general comment No. 35 (2014), para. 25; and opinions No. 30/2017,
paras. 58 and 59; and No. 85/2021, para. 69.
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49.
The Working Group recalls that deprivation of liberty by agents of the State or persons
acting with the authorization, support or acquiescence of the State, followed by a refusal to
acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the
disappeared person, is prohibited by international law. It constitutes a particularly aggravated
form of arbitrary detention, notably as it places the person outside the protection of the law.6
50.
Considering the lack of information from the Government to contest the source’s
allegations or establish the whereabouts of Mr. Fattouh between his arrest and appearance
before the East Cairo Military District Court, the Working Group finds that Mr. Fattouh was
subjected to enforced disappearance, in violation of article 3 of the Universal Declaration of
Human Rights and article 9 (1) of the Covenant.
51.
One of the most glaring consequences of enforced disappearance is that it effectively
deprives the detained individual from the right to challenge the legality of the detention
before a court, in violation of article 9 (3) and (4) of the Covenant. Judicial oversight of any
detention is a central safeguard for personal liberty and is critical in ensuring that the
detention has a legitimate basis. The Working Group recalls that holding persons at secret
locations and in circumstances undisclosed to their family violates their right to contest the
legality of their detention before a court or tribunal under article 9 (3) and (4) of the
Covenant.7 Given that Mr. Fattouh’s whereabouts were not disclosed for nine months despite
his family’s repeated requests to the authorities, the Working Group finds that he was
deprived of his rights under article 9 (3) and (4) of the Covenant, and was placed outside the
protection of the law, in violation of article 6 of the Universal Declaration of Human Rights
and article 16 of the Covenant. The Government’s failure to notify Mr. Fattouh’s family of
the location of his detention also violated principle 16 (1) of the Body of Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment.
52.
Furthermore, article 9 (3) of the Covenant provides that anyone arrested or detained
on a criminal charge should be brought promptly before a judge. As the Human Rights
Committee has stated, 48 hours is ordinarily sufficient to satisfy the requirement for
promptness. Any delay longer than that must remain absolutely exceptional and be justified
under the circumstances.8
53.
As stated above, Mr. Fattouh was subjected to enforced disappearance from the
moment of his arrest and he only appeared before a judge nine months after his arrest. It
follows from that finding that his right to be promptly brought before a judge following his
arrest was also violated, contrary to article 9 (3) of the Covenant and principle 32 of the Body
of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.
54.
Lastly, the Working Group takes note of the source’s allegations that Mr. Fattouh was
held in pretrial detention for nearly six years before he was sentenced to seven years’
imprisonment on 25 August 2021. In fact, according to the source, Mr. Fattouh is currently
being held in pretrial detention in relation to case No. 1973 of 2023 at the 10th of Ramadan
Prison, a fact that the Government acknowledges in its late response.
55.
The Working Group recalls that it is a well-established norm of international law that
pretrial detention should be the exception and not the rule, and that it should be ordered for
as short a time as possible.9 Article 9 (3) of the Covenant provides that it should not be the
general rule that persons awaiting trial be detained, but release may be subject to guarantees
to appear for trial and at any other stage of the judicial proceedings. It follows that liberty is
recognized as a principle and detention as an exception in the interests of justice.10 In order
to give effect to that principle, pretrial detention must be based on an individualized
6 Opinions No. 5/2020, No. 6/2020, No. 11/2020, No. 13/2020, No. 77/2020, No. 38/2021,
No. 53/2022, No. 56/2023 and No. 17/2024. See also Human Rights Committee, general comment
No. 35 (2014), para. 17.
7 Opinion No. 17/2024, para. 62.
8 Human Rights Committee, general comment No. 35 (2014), paras. 32 and 33.
9 Opinions No. 28/2014, para. 43; No. 49/2014, para. 23; No. 57/2014, para. 26; No. 1/2020, para. 53;
and No. 8/2020, para. 54; Human Rights Committee, general comment No. 35 (2014), para. 38; and
A/HRC/19/57, paras. 48–58.
10 A/HRC/19/57, para. 54.
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determination that is reasonable and necessary, for such purposes as to prevent flight,
interference with evidence or the recurrence of crime.11 The courts must examine whether
alternatives to detention, such as bail, would render custodial measures unnecessary. 12
Moreover, although the severity of the sentence faced is a relevant element in the assessment
of the risk of absconding or reoffending, the need to continue the deprivation of liberty cannot
be assessed purely from this abstract point of view, taking into consideration only the gravity
of the offence and using stereotyped formula without an individualized assessment or
considering alternative preventive measures.
56.
In the present case, the Working Group observes that, contrary to the above-mentioned
norms, Mr. Fattouh was kept in pretrial detention for nearly six years before being convicted
in 2021, with no statutorily prescribed reviews of his detention and no alternative
preventative measures being examined. The Working Group has received no information
allowing it to conclude that individualized determinations underpinned Mr. Fattouh’s pretrial
detention over the course of six years. It thus finds Mr. Fattouh’s detention to be in violation
of article 9 (3) of the Covenant.
57.
The Working Group thus concludes that the deprivation of liberty of Mr. Fattouh lacks
a legal basis and is thus arbitrary under category I.
(b)
Category III
58.
The source claims that the deprivation of liberty of Mr. Fattouh falls within
category III as there was total or partial non-observance of the international norms relating
to the right to a fair trial, as he did not benefit from effective legal assistance of counsel and
was subjected to torture and other cruel or inhuman treatment and was forced to confess under
duress.
59.
In particular, the source alleges that Mr. Fattouh initially had a lawyer appointed by
his family, who attended court sessions with him but was never permitted to visit him outside
of court, and their communication was limited to appearances before the prosecution.
Furthermore, the source argues that, as the number of cases against Mr. Fattouh kept
multiplying, he lost faith in the possibility of proving his innocence through domestic legal
avenues and ultimately stopped hiring defence lawyers. In its late reply, the Government
limits itself to stating that the investigations by the public prosecution were conducted in the
presence of the defendant’s counsel.
60.
The Working Group recalls that all persons deprived of their liberty are to have the
right to legal assistance of the counsel of their choice, at any time during their detention,
including immediately after their apprehension, and that such access is to be provided without
delay.13 The right to legal assistance is an essential element of the right to a fair trial, as it
serves to ensure that the principle of equality of arms is duly observed.14 The Working Group
further recalls that access to counsel is a right enshrined in article 14 (3) of the Covenant and
principles 11 (2), 17 and 18 of the Body of Principles for the Protection of All Persons under
Any Form of Detention or Imprisonment and reinforced by article 11 of the Universal
Declaration of Human Rights. Article 14 (3) (b) of the Covenant sets out the right of all
persons to have adequate time and facilities for the preparation of their defence and to
communicate with the counsel of their own choosing.
61.
The Working Group notes that the Government did not specifically address whether
the lawyer was able to visit Mr. Fattouh in prison or if communication between Mr. Fattouh
and his lawyer had been granted. Noting the lack of information from the Government to
11 Human Rights Committee, general comment No. 35 (2014), para. 38.
12 Ibid.; opinion No. 83/2019, para. 68; and United Nations Basic Principles and Guidelines on
Remedies and Procedures on the Right of Anyone Deprived of Their Liberty to Bring Proceedings
Before a Court, guideline 15.
13 United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone
Deprived of Their Liberty to Bring Proceedings Before a Court, principle 9 and guideline 8; Human
Rights Committee, general comment No. 35 (2014), para. 35; A/HRC/45/16, paras. 50–55; and
A/HRC/48/55, para. 56. See also A/HRC/27/47, para. 13.
14 See, for example, opinion No. 35/2019.
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9
disprove the source’s allegations in that regard, the Working Group is of the view that
Mr. Fattouh was denied his right to effective legal counsel, contrary to principles 15, 17 and
18 of the Body of Principles for the Protection of All Persons under Any Form of Detention
or Imprisonment and principles 1, 5, 7, 8, 21 and 22 of the Basic Principles on the Role of
Lawyers.
62.
Furthermore, it appears to the Working Group that Mr. Fattouh was not afforded the
due process right to be visited by and have contact with his family and to be given adequate
time and opportunity to communicate with the outside world, subject to reasonable conditions
and restrictions as specified by law or lawful regulations, in accordance with principles 15
and 19 of the Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment and rules 43 (3) and 58 of the Nelson Mandela Rules. Having
prompt and regular access to family members and independent medical personnel and
lawyers is an essential and necessary safeguard for the prevention of torture, as well as for
protection against arbitrary detention and infringement of personal security.15
63.
As established above, Mr. Fattouh was subjected to enforced disappearance for nine
months following his arrest. The source submits that Mr. Fattouh’s family was only able to
visit him on 20 April 2016. However, it notes that, currently, he is able to receive family
visits on a regular basis. The Government states that Mr. Fattouh receives regular family
visits, such as a visit by family members on 9 June 2024, but does not deny that the first
family visit that he received was in April 2016, almost a year after his arrest. Taking into
consideration all the information available to it, the Working Group considers that
Mr. Fattouh’s right to receive visits was violated during the initial stage of his arrest, when
he was subjected to enforced disappearance.
64.
The Working Group expresses grave concern at the source’s allegations that
Mr. Fattouh was subjected to torture and other cruel and inhuman treatment during his
enforced disappearance, including physical beatings, the application of electric shocks, denial
of access to the bathroom and suspension in painful positions, and was forced to confess to
the charges against him due to the severity of the torture. According to the source, despite
informing the judge that his confessions had been obtained under torture and showing
physical traces of torture (black spots all over his body and impairment of his limbs due to
nerve damage), the prosecution refused to investigate Mr. Fattouh’s claims. While the
Government denies the source’s allegations and states that the investigating authorities
examined Mr. Fattouh during the investigation and trial proceedings in the presence of his
lawyer and found no injuries to support the veracity of the allegation, it does not provide
further details in this respect.
65.
According to the Working Group’s jurisprudence, if persons allege that their
confessions were coerced, regardless of the stage of the proceedings at which this allegation
is first made, it is for the judiciary to establish that they were not obtained through the
application of pressure of any kind.16 In its late response, the Government submits that the
interrogation procedures were carried out after summoning Mr. Fattouh’s lawyer to attend
the investigation sessions within the legal time frames, in accordance with article 36 of the
Criminal Procedure Code and international conventions signed by Egypt, in particular
article 9 (2) and (3) of the Covenant. The Government states that the allegations of torture
are implausible from both substantive and legal perspectives and that relying on verbal
evidence, such as a confession alone, is not sufficient in such complex cases as the present
one.
66.
The Working Group recalls that torture is not only a grave violation of human rights
per se, but it also undermines the ability of persons to defend themselves, thereby hindering
the exercise of the right to a fair trial. The Working Group notes that the use of confessions
extracted through ill-treatment that is tantamount if not equivalent to torture is a violation of
article 14 (3) (g) of the Covenant and may also constitute a violation of the State’s obligations
under article 15 of the Convention against Torture.17 Furthermore, principle 21 of the Body
15 Opinions No. 10/2018, para. 74; No. 11/2020, para. 54; No. 33/2020, para. 87; No. 34/2020, para. 57;
and No. 87/2020, para. 116.
16 Opinions No. 78/2019, para. 52; and No. 71/2024, para. 131.
17 Human Rights Committee, general comment No. 32 (2007), para. 60.
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GE.25-08056
of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment
specifically prohibits taking undue advantage of the situation of detained persons to compel
them to confess or incriminate themselves. The admission into evidence of a statement
allegedly obtained through torture or ill-treatment renders the entire proceedings unfair,
regardless of whether other evidence was available to support the verdict.18 The burden is on
the Government to prove that statements were given freely,19 but in the present case it has
not done so.
67.
The Working Group notes that the response of the Government to the allegations of
torture during Mr. Fattouh’s enforced disappearance is focused principally on the absence of
injuries and other physical manifestations of assault. However, the Working Group notes the
source’s uncontested allegation that Mr. Fattouh only appeared before a court approximately
nine months after his arrest, which the Working Group considers is possibly sufficient time
for his marks to have disappeared. Taking into consideration all the information available to
it, the Working Group is inclined to consider that the fairness of the proceedings was tainted
by mistreatment and torture, amounting to a violation of Mr. Fattouh’s fair trial rights under
article 11 (1) of the Universal Declaration of Human Rights and article 14 (3) (g) of the
Covenant.
68.
Furthermore, the Working Group observes that Mr. Fattouh spent six years in pretrial
detention before being sentenced to seven years’ imprisonment in Tora Istiqbal Prison. The
Working Group recalls that the right of the accused to be tried without undue delay, set out
in article 14 (3) (c) of the Covenant, is designed not only to avoid keeping persons too long
in a state of uncertainty about their fate and, if held in detention during the period of the trial,
to ensure that such deprivation of liberty does not last longer than necessary in the
circumstances of the specific case, but also to serve the interests of justice. The Working
Group has not been presented with any reasons to justify such a delay. It therefore finds a
violation of article 14 (3) (c) of the Covenant.
69.
Lastly, the Working Group notes that, according to the source, Mr. Fattouh continues
to be repeatedly detained and punished in relation to charges for which he has either been
acquitted or for which he has already served the corresponding sentences. Through the
practice of recycling cases, the source argues that the authorities violated the right of
Mr. Fattouh to be free from prolonged arbitrary detention. The Government, in its late reply,
does not refute those allegations, only acknowledging that Mr. Fattouh is currently held in
pretrial detention in relation to case No. 1973 of 2023. In direct contrast, the source identifies
at least three other cases in relation to Mr. Fattouh that the Government does not address and
which, given the striking similarity of the charges, all related to the crime of “joining a
terrorist group”, give weight to the argument that Mr. Fattouh was “rotated” through different
cases to prolong his detention.
70.
While the Working Group does not have sufficient information to conclude that a
violation of the principle of ne bis in idem enshrined in article 14 (7) of the Covenant has
taken place, it considers that the Government has not adequately rebutted the source’s claims
in relation to Mr. Fattouh having been subjected to the practice of “rotation”.
71.
Noting all of the above, the Working Group concludes that the violations of
Mr. Fattouh’s right to a fair trial were of such gravity as to render his detention arbitrary,
falling under category III.
(c)
Concluding remarks
72.
The Working Group is extremely concerned about the source’s claim in relation to
deliberate medical negligence of Mr. Fattouh’s health. According to the source, Mr. Fattouh
developed back problems and functional impairment of his limbs due to the electric shocks
that he was subjected to during his detention and, despite his condition, the authorities refused
to examine him. Furthermore, the source submits that Mr. Fattouh had to wait two years to
18 Opinions No. 43/2012, para. 51; No. 34/2015, para. 28; No. 52/2018, para. 79 (i); No. 32/2019,
para. 43; No. 59/2019, para. 70; and No. 73/2019, para. 91.
19 Human Rights Committee, general comment No. 32 (2007), para. 41; see also opinions No. 41/2020
and No. 86/2020.
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GE.25-08056
11
receive an endoscopy examination. The Working Group reminds the Government that,
according to article 10 (1) of the Covenant and rules 1, 24, 27 and 118 of the Nelson Mandela
Rules, all persons deprived of their liberty must be treated with humanity and with respect
for the inherent dignity of the human person, including being provided with medical care.20
73.
The present opinion is one of several brought before the Working Group in recent
years concerning arbitrary detention in Egypt.21 The Working Group remains concerned that
that might indicate a widespread or systematic practice of arbitrary detention in Egypt,
including through the unlawful practice of rotation, whereby release is ordered but never
effected and new charges are brought against the person concerned.22 The Working Group
underlines that States have the obligation not to engage in acts that could constitute crimes
against humanity and to prevent and punish them if they are committed.
3.
Disposition
74.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Ibrahim Amer Shehata Fattouh, being in contravention
of articles 3, 6, 9 and 11 of the Universal Declaration of Human Rights and articles 9,
14 and 16 of the International Covenant on Civil and Political Rights, is arbitrary and
falls within categories I and III.
75.
The Working Group requests the Government of Egypt to take the steps necessary to
remedy the situation of Mr. Fattouh without delay and bring it into conformity with the
relevant international norms, including those set out in the Universal Declaration of Human
Rights and the International Covenant on Civil and Political Rights.
76.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Fattouh immediately and accord him
an enforceable right to compensation and other reparations, in accordance with international
law.
77.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of
Mr. Fattouh and to take appropriate measures against those responsible for the violation of
his rights.
78.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
4.
Follow-up procedure
79.
In accordance with paragraph 20 of its methods of work, the Working Group requests
the source and the Government to provide it with information on action taken in follow-up
to the recommendations made in the present opinion, including:
(a)
Whether Mr. Fattouh has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Fattouh;
(c)
Whether an investigation has been conducted into the violation of
Mr. Fattouh’s rights and, if so, the outcome of the investigation;
(d)
Whether any legislative amendments or changes in practice have been made to
harmonize the laws and practices of Egypt with its international obligations in line with the
present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
80.
The Government is invited to inform the Working Group of any difficulties it may
have encountered in implementing the recommendations made in the present opinion and
20 Opinion No. 26/2017, para. 66.
21 See, for example, opinions No. 12/2023, No. 20/2023, No. 31/2023, No. 36/2023, No. 40/2023,
No. 70/2023, No. 8/2024, No. 17/2024 and No. 20/2024.
22 Opinions No. 20/2023, para. 75; No. 70/2023, para. 87; and No. 20/2024, paras. 63 and 75.
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GE.25-08056
whether further technical assistance is required, for example through a visit by the Working
Group.
81.
The Working Group requests the source and the Government to provide the
above-mentioned information within six months of the date of transmission of the present
opinion. However, the Working Group reserves the right to take its own action in follow-up
to the opinion if new concerns in relation to the case are brought to its attention. Such action
would enable the Working Group to inform the Human Rights Council of progress made in
implementing its recommendations, as well as of any failure to take action.
82.
The Working Group recalls that the Human Rights Council has encouraged all States
to cooperate with the Working Group and has requested them to take account of its views
and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily
deprived of their liberty, and to inform the Working Group of the steps they have taken.23
[Adopted on 8 April 2025]
23 Human Rights Council resolution 51/8, paras. 6 and 9.